Monday, April 30, 2012

Tracking Dog’s Alert Helps Convict, but Should It Have Been Accepted as an Identification?

When the U.S. Supreme Court hears arguments in Harris v. Florida (Docket No. 11-817) this
fall, it is likely to determine whether training and certification are
sufficient to establish a drug dog’s reliability for a search of a vehicle. The Florida Supreme Court determined that
the prosecution had to produce the dog’s field records and had the burden of
establishing probable cause.

In a recent California case, the tracking and alert of an
uncertified tracking dog that would probably not have met the reliability standard required of a detection dog in Florida was admitted to establish the
identity of the perpetrator in a murder.
Although the U.S. Supreme Court will not consider a tracking case, its
pronouncements regarding training, certification, field records, and the
evidentiary burden to establish reliability are likely to affect future
decisions in cases such as the one we analyze here.

A Murder in Southern
California

Carlos C. was shot and killed as he rode on his skateboard in
Ontario, California, the evening of November 6, 2008. The shooter was described as a black man
wearing a hooded sweatshirt and khaki shorts.
Officer Louis Mena was the first to arrive, finding Carlos alive but not
responsive. He was pronounced dead in a
hospital emergency room a short time later.
He had been shot twice in the back.

One witness, Jair Monares, who had encountered Kevin Tyron
Stanford shortly before the shooting, described Stanford pulling a gun on
him and shooting it in the air. Monares
picked Stanford out of a lineup and testified that he had seen Stanford wearing
a hoodie and shorts. Another witness,
Maricela Sierra, heard someone yell “Black Crips” and went out from the
laundry room of her apartment where she saw a black man wearing a hoodie and
khaki shorts chasing someone riding a bicycle.

A third witness, Raul Ramirez, was riding his bicycle when
he heard gunshots and then encountered the defendant, whom he identified at
trial. Stanford apparently said to
Ramirez, “What the hell are you looking at fuckin’ Mexican. Go back to Mexico, fuckin’ wetback.” Ramirez rode off but Stanford chased
him. The bicycle’s chain derailed and
Ramirez fell against the curb. Stanford
took the bicycle and fled. Maricela
Sierra, having caught up with Ramirez, helped him describe events to the 911
operator.

A fourth witness, Jessica Villalobos, who happened to be
Jair Monares’s girlfriend, saw a black man from the second floor apartment
where she lived, then later heard gunshots after which she saw a body on the
sidewalk and a skateboard rolling down the street. She saw the defendant pick up the bicycle and
head towards a church. She called
Monares, who left his house and saw Stanford for a second time, though this
time Stanford did not look at or speak to him.

Ava Stone was returning to the apartment which she shared
with a number of people at about 7:30 when she was stopped by a police officer,
who told her that a suspect in a murder had been seen entering her
apartment. The officer asked her to have
all males in the apartment over 18 years old come outside. The defendant was in a bathroom and ignored
her request, so she and another man told the police. The defendant came out after taking a shower
and changing his clothes.

Monares and Ramirez were brought by the police to the area.
Monares recognized and identified the defendant as the person he had twice seen
as events unfolded. While Ramirez recognized the defendant, he was too afraid
to make a formal identification at that time. The Ontario police also brought a bloodhound,
which followed a path from the place where Ramirez’s bicycle had been abandoned
to the defendant as he stood in a group of about six black men.

K-9 Willow and
Officer Rivera

Willow was a purebred bloodhound that had been acquired by
the Pomona Police Department two years before the incident. Willow’s handler was Officer Cesar Rivera,
who had been a K-9 handler for 14 years.
Before Willow, Rivera had handled two Belgian Malinois, both trained in
patrol work and narcotics detection.
Rivera had in fact written the proposal for the police department to
acquire a bloodhound. Further details
concerning Rivera and Willow were described by the court in summarizing
Rivera’s testimony:

“[The] Pomona Police Department obtained Willow from a
foundation in Florida that has a training facility in Georgia. Willow had been
trained to track for almost a year by a trainer at the foundation and had also
been used in the field by law enforcement agencies before Pomona Police
Department acquired her. In her work for the other law enforcement agencies,
Willow had done approximately six or seven finds, i.e., where she actually
tracked and located someone. Rivera trained with Willow at the Georgia facility
for a week before bringing her back to Pomona. Rivera described the training,
which involved the use of a training track and keeping a log of the dog's
performance. After he brought Willow back to Pomona from Georgia, Rivera spent
two to four hours a day for two months training her to do hard surface tracking
before putting her in the field. Rivera kept logs and only put Willow out into
the field when ‘she was very reliable where she actually stayed on the track
and located the decoy.’”

It is clear the dog received training prior to being
acquired and brought to California. The prior training and use of the dog by
other law enforcement agencies should have been explored as it might have
indicated problems which caused the other agencies to return the dog to the
foundation.

Curiously, Rivera apparently testified that there is no test
or certification for bloodhounds. This is incorrect since a number of
organizations have testing and certification programs for tracking dogs. See, e.g., the National Police Bloodhound Association. The intent may have been to state that the
police department itself had no formal program.
Rivera acknowledged that Willow had bad days—he said about 5% of the
time—when she did not perform well. Rivera provided Willow’s training logs to
the defense.

Rivera described how Willow works:

“Rivera described for the court how he gets Willow to track,
a process that involves taking her to where the subject was last seen, having
her sniff an object that contains the subject's scent, and then telling her to
‘go find him.’ Willow then sniffs around, finds the direction of travel, and ‘once
she finds the direction of travel, then she's on the go, she's tracking.’
Rivera trains Willow every day he works with her, which is about 16 hours each
month, and once a year he goes back to Florida to meet with other handlers and
exchange information.”

It was not clear what was in the records Rivera kept of these
daily training sessions. If they
involved tracking of volunteers, more information about the team’s skills could
have been obtained from them.

Willow at the Crime
Scene

Rivera took Willow to Ramirez’s bicycle, which had been left
near a church. Rivera had Willow sniff
Ramirez so as to eliminate him as a tracking subject, a procedure called “the
missing member,” which is described in Police
and Military Dogs, Chapter 5: Scenting to Items or Locations with Odors of
Multiple Individuals. (We note that one
expert described the procedure as “not wholly reliable”.)

The court described Willow’s actions in the investigation as
follows:

“Willow sniffed various parts of the bike, and then
proceeded on her own track. Willow followed her nose through a hole in the
brick wall between the alley and the church, down the alley to Parkside,
through Stone's apartment complex, and straight to six or seven men who were
lined up in the middle of the street, shoulder to shoulder. After sniffing each
of the men, Willow sat down in front of defendant, which Rivera explained means
she had matched the scent she picked up from the bike with defendant. Officer
Rivera walked Willow away from the area briefly while the men moved to stand in
different positions. Rivera then returned with Willow and gave her the command
to go find him. Willow again sniffed each person and alerted on defendant by
sitting down behind him.”

It is to be noted that Willow had not followed Stanford's path exactly, since he had gone into the building where he took a shower and changed his clothes.

Optimal scent lineup design often specifies that different
foils should be used in separate lineups, since a situation such as the one
described here, occurring moments after the initial identification, is likely
to produce the same result, perhaps because of some attractiveness of the
person alerted to that may be unrelated to the scent of the trail.

No mention was made of research that has indicated that dogs
may be more accurate when following a trail than when identifying an individual
at the end of the trail. In an
experiment conducted near Phoenix, dogs followed the correct trail from a test
site where an improvised explosive device was detonated to the area where the
person who “set” the device was standing, but in several trials the dogs then
identified the wrong individual. (See Police and Military Dogs,
Chapter 5: Is Trailing More Successful than Identification?; also see prior blog regarding the research.)

Court Rejects
Application of Standard for Admission of Scientific Evidence

The defense attacked the introduction of the canine
testimony by asserting that it did not meet requisite scientific standards
under California v. Kelly, 17 Cal.3d 24 (1976) (California adheres to the
somewhat more difficult but now superseded federal standard enunciated in Frye
v. U.S., 293 F. 1013 (D.C.Cir. 1923), rather than the looser standard adopted
by the U.S. Supreme Court in 1993 in Daubert v. Dow Pharmaceuticals, 509 U.S. 579,
113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).)
The court rejected the argument, as California courts have before,
saying that dog tracking evidence did not involve a scientific technique
subject to Kelly. The California appellate court acknowledged that scientific
validity might have been required had the police used a scent transfer unit to
place the scent given the dog on a pad. Although not a
lineup, the court states to “the process by which Willow identified defendant involved
tracking or trailing,” meaning that the selection of Stanford in the group fits
within a procedure sometimes referred to as a “station identification.”

We have previously described a tracking case where tracking law was
strained to cover a station identification by a California Court, essentially tracking law to a poorly constructed scent lineup. The court here perhaps assumed that an
identification based on all the scents emanating from an individual at the end
of the track would be more accurate than an identification based on matching
specific scents left on objects that a criminal may have held. Yet even in highly controlled scent lineups,
experienced dogs can pick a foil over the target. The risks are even greater with a lineup of
people as opposed to a scent-matching procedure. Generally speaking, European scent lineup
technology has long rejected the use of lineups of individuals. As noted in Police and Military Dogs, one Dutch
researcher writing as far back as 1936 stated:

“It is still more dangerous to let a dog choose a person out
of a row of people on the score of the odour of an object offered to the dog.
Even if the trainer knows nothing about the test, and has himself no suspicion
of anybody, there still remains the possibility, by no means a light one, that
the dog may respond to the faintest movement of one of those persons.”

In other words, cueing inducing an alert could come from behavior
exhibited by the handler, the suspect, or another person present and visible to
the dog.

Further, the description of the tracking does not specify
the length of the track involved, which has been found to correlate with the
accuracy of an identification at the end of the track. (See Chapter 4: Length of the Trail, noting
that the longer the trail, the more likely the dog would not follow a decoy who
had been walking with the target when the two people separated and left
separate trails.)

Foundation for
Admission of Tracking Evidence Deemed Satisfied

The court here cited the necessary elements for tracking or
trailing evidence to be admissible:

(1) the dog's handler was qualified by training and
experience to use the dog;

(2) the dog was adequately trained in tracking humans;

(3) the dog has been found to be reliable in tracking
humans;

(4) the dog was placed on the track where circumstances indicated
the guilty party to have been; and

(5) the trail had not become stale or contaminated.

Since the court determined that this foundation had been
established, “the trial court did not abuse its discretion by admitting
evidence that Willow tracked defendant from the bicycle to where defendant
stood in a group of men.” It is not
clear whether Rivera knew who Stanford was.
Although it might be assumed based on the court’s description of when he
and the dog arrived that no one had identified Stanford to him, or described
Stanford in sufficient detail for him to make the identification himself, it is
not clear that this issue was investigated in cross-examination or
otherwise. If Rivera had knowledge that
could have allowed him to deduce who Stanford was in the group, the risk of
cueing by the handler is significant.

Reliability of the
Canine Team

Defense counsel attacked Willow’s reliability:

“[D]efendant first cites the purported absence of a log
documenting Willow's success rate. In defendant's view, the ‘hundreds of pages
of reports’ Officer Rivera produced did not constitute a ‘log’ and therefore
did not establish Willow's reliability in tracking humans. Defendant concedes
that Officer Rivera testified to Willow's reliability, i.e., she is on the mark
95 percent of the time. If, as defendant contends, that figure was a
“guestimate” on the part of the officer, that is a circumstance that goes to
the weight the jury should give the tracking evidence, but it does not affect
the admissibility of the evidence.”

It is not clear if the hundreds of reports could have been
distilled by defense counsel into intelligible evidence, or if counsel even
attempted to do so. It may be supposed
that this was either impossible or not done since an accurate success rate
would have obviated the need for a “guestimate” and allowed inquiry into
questions such as how many trails went cold and how often the dog alerted when
encountering an individual at the end of the trail. If the materials could not answer such questions,
it must be questioned whether reliability was in fact established.

The defense also argued that the tracking evidence was
inadmissible because Rivera had no formal training. This too the court rejected:

“Although defendant takes issue with the extent of that
training, he does not identify the specific deficiencies or recount the
additional training Officer Rivera should have had in order for the tracking
evidence to be admissible. Defendant also claims that the absence of licensing
or certification affects the validity of Officer Rivera's testimony regarding
Willow's reliability because Willow's performance has not been independently
evaluated. Defendant's claim assumes that if a licensing organization existed,
it would require independent assessment. The claimed deficiencies, if any, go
to the weight of the evidence and not whether it is relevant and therefore
admissible.”

Again, the implication is that independent testing is
unavailable, which is not the case.
Also, it seems as though the burden of establishing the dog’s
reliability did not lie with the prosecution, but rather that the defense had
to establish that the dog was not reliable.
(In Harris, which the U.S.
Supreme Court will consider, the State of Florida asserts in its appeal that
the court placed “an excessive evidentiary burden” on the prosecution, by
requiring the production of a dog’s field activity reports. Curiously, the State of Florida’s brief in Harris notes that “California courts do not require evidence of a
dog’s success rate in the field to establish probable cause.”)

The defense apparently argued that Willow had been used to
find lost children and that this was not the same as tracking a criminal. More needs to be known about the team’s work
to judge the level of her tracking skills in situations such as was presented during the investigation here.

The defense was grasping at straws in arguing that there was
no other evidence that the defendant had gone through the brick wall. The prosecution was required to demonstrate
that the dog was placed on the track where evidence indicates the target had
been—here, the place where the bicycle was abandoned. It is not necessary to show that every place
along the trail followed could be established by other evidence than the path
the dog took. That the dog went to the
group of men rather than to the apartment where the defendant had been for some
time may indicate that the defendant had created a cross-track somewhere
outside the apartment, which the dog followed as having the stronger or most
recent scent, but as with a hunting dog, a tracking dog may follow the stag
after it crosses over its initial trail. In a station identification, the
tracking dog usually resumes tracking at the station because the scent it has
been given is again detected and the dog follows the scent to an individual and
alerts as an identification.

Having rejected other challenges, the court affirmed the
murder conviction.

Conclusion

Science will out in the end, though it may take a long
time. We are not arguing that a Frye or Daubert hearing should be held to admit tracking evidence, but we
are saying that the foundation should be established before the jury hears
about the tracking and that scientific research can inform the analysis of the foundational requirements. It is not clear from
the court’s description if the dog was adequately trained or if it is a reliable tracker. Thus, at least two out of the five foundational
elements are in serious question. Also,
the dog’s reliability in scent identification was not even alluded to and the
dog’s alert, though generally admissible under American law, should have been
acknowledged as perhaps due to other factors than a matching of scents.

When the U.S. Supreme Court hears Harris this fall, it may consider why training and testing records
for some drug dogs demonstrate much higher accuracy than field records. The mantra that too many handlers repeat
about residual odor cannot hide the fact that U.S. Supreme Court precedent has
given narcotics canine handlers the power to support searches of luggage with
minimal and cars without reasonable suspicion, providing a means of acting on a
hunch. Similarly, poorly designed and
implemented scent identification procedures provide an identification that can
be introduced with minimal corroboration.
If that identification occurs under a procedure that does not have a
high probability of producing an accurate result, as has happened with almost
all judicially described American scent lineups, then a court which approves such a
procedure provides a fallback for getting a conviction when other evidence is
lacking or disappears before it can be presented to the jury.

This case amounts to a sort of station identification,
though it did not take place in a police station. It would not have been acceptable evidence in
the Netherlands, where even much more rigorously controlled and scientifically
supportable scent identifications are no longer deemed acceptable evidence. (For
the history of this, see Ruud Haak, K9 Fraud!)
Nevertheless, with requirements of corroboration, and cautions to juries
about limited value, such identifications have a long tradition of being
admissible in American courts.

There was a good deal of eyewitness testimony in the
prosecution of Kevin Tyron Stanford and the canine identification, even if
improperly admitted, was only one of a number of identifications and could probably
be termed harmless error. Therefore,
though not without serious flaws, and certainly not elegant, the decision
probably reached the correct result.

Regardless of how the Supreme Court rules in Harris, its thinking regarding training,
certification, the keeping of field records, and the placement of evidentiary
burdens in canine narcotics detection cases, will only be dictum for a court
considering facts like those presented in this California case. Nevertheless, the high Court’s reasoning will
provide grist for judicial mills across the country and a decision such as California v. Stanford may not be made
under precisely the same logic in the future.

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Novel About the First-Century Jewish Revolt Against Rome

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Novel About Rome in the Time of Nero

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John Ensminger is an attorney and member of the bars of the State of New York and the United States Supreme Court. He is the co-editor of Canine Olfaction Science and Law: Advances in Forensic Science, Medicine, Conservation, and Environmental Remediation. His other books include Police and Military Dogs: Criminal Detection, Forensic Evidence and Judicial Admissibility and Service and Therapy Dogs in American Society. His articles on legal and scientific issues have appeared in Applied Animal Behaviour Science, Forensic Science International, Journal of Forensic Sciences, Journal of Animal and Natural Resource Law, Journal of Veterinary Behavior, Journal of Animal Law, ABA General Practice, Tax Notes, and the Journal of Forensic Psychology Practice. John is a Contributing Editor of the Animal Legal & Historical Center of the Michigan State University College of Law.